NOAA Learns How to Cooperate on Shark Fins

Here’s some good news to brighten up your week: the National Oceanic and Atmospheric Administration (NOAA) has acknowledged that state shark fin bans are consistent with federal law.

If you’re thinking that this should be a no-brainer, you’re not the only one. State fin bans and federal law regulate completely different things. The state laws (passed in California, Maryland, Washington, New York, Oregon, Delaware, Illinois, Hawaii, and several territories) prohibit the possession, sale, and trade of shark fins. These laws apply on land, within the state’s borders, and are designed to affect the consumption and demand of shark fins. Federal law, by contrast, regulates fishing behavior at sea, requiring fishermen to leave sharks’ fins attached to their bodies up to the point of landing.

Even though these laws regulate different areas, NOAA issued a proposed rule last year saying that state fin bans may interfere with federal law and could be preempted. NOAA even went so far as to file an amicus brief with the Ninth Circuit U.S. Court of Appeals last August, arguing that California's shark fin ban conflicted with federal law and should be struck down.

Earlier this week, however, the agency reversed course and issued letters addressing three states’ fin bans (Maryland, Washington, and California). In each case, NOAA examined the facts and concluded that the state law was not interfering with federal law, and therefore should not be preempted. You might wonder why the agency didn't investigate the facts before issuing its proposed rule last year--and especially before filing a legal brief asking for California's law to be struck down. I'm wondering that too.

Regardless, after getting better information NOAA realized these state laws were not causing problems with federal fisheries management. This is a good thing, and better late than never. Now states like California can feel secure in their shark conservation policies.

If that’s what you came here to learn, here’s a pretty shark picture, and you can stop reading now.

Hammerhead Sharks by Ryan Esposito, via Creative Commons

For those of you wanting to know a bit more, you might be wondering why--if the state and federal laws are regulating different activities--was there ever concern about one interfering with the other? To answer, I’ll outline the 2-step argument NOAA used last year to assert preemption.

First, the agency relied on a chain of factual assumptions: when a state prohibits the sale of shark fins on land, it means that a fisherman will generally get less money for each shark he brings in, because he will have to throw away the shark’s fin instead of selling it. Because fishermen will make less money per shark, they will be less likely to go fishing for sharks, and overall fewer sharks will be caught from federal waters as a result of the state fin ban. Plausible? Perhaps in a few situations; it really depends on specific circumstances.

Second, NOAA took a leap of legal reasoning, and asserted that if fewer sharks were caught in a federal fishery, it would constitute a failure to produce “Optimum Yield” from that fishery as required by law. What does this mean? Well, Optimum Yield is a concept created by the Magnuson-Stevens Fishery Conservation and Management Act as a sort of overall goal for management in U.S. fisheries. It’s a nebulous concept, but it basically refers to the total amount of fish that should be caught in a fishery: start with the maximum amount that’s biologically sustainable, subtract a chunk to account for the needs of the ecosystem, subtract any further amount necessary to stabilize catches and provide economic consistency in fishing communities, and then go out and harvest as much of the remaining amount as markets and prices will demand.

Now if you’ve really brought your A-game today, you’ll be asking: if the only way state fin bans affect behavior in federal fisheries is indirectly, through price signals, and if Optimum Yield takes into account markets and prices, then aren’t state fin bans consistent with Optimum Yield? The answer, of course, should be yes.

In order to find a price-influencing state law like a fin ban to be inconsistent with Optimum Yield, you essentially have to take one of two views, and both are logical dead-ends.

First, you can simply deny that Optimum Yield accommodates varying market prices--i.e., interpret Optimum Yield as a static concept, a specific amount of fish that the federal government pre-determines each year, which must be caught regardless of markets, prices, and demand. This would get you to the conclusion that fin bans are preempted, but it would also lead to absurdity. If Optimum Yield were prescriptive, not responsive, to market prices, then the government would have to use price supports to guarantee fishermen a market for their catch, or even more extreme, the government would have to send out the Coast Guard to harvest any remaining fish that fishermen aren’t interested in catching, so as to ensure that the full Optimum Yield is caught. This isn’t the world we live in. Fisheries laws have always been understood to provide fishermen the opportunity to catch fish, subject to market prices, weather, the costs of fuel, labor regulations, etc. Fisheries laws have never been understood to require the harvest of fish at all costs.

The second way to find state fin bans inconsistent with Optimum Yield is slightly more nuanced, but still a dead end. You can say that Optimum Yield does accommodate fluctuations in market prices and demand, but only when those fluctuations are due to “natural” market factors, and not state interference. In other words, you could say that it’s fine if fishermen decide to not catch the full quota of dover sole this year because the price is low due to weak consumer demand, but it’s not fine if the reason why the price is low is because the State of Oregon (hypothetically) put limits on dover sole consumption. This sounds like a nice distinction, but it falls apart quickly when you realize that state policies influence market prices and demand in hundreds of subtle ways--through fuel taxes, health and safety regulations, labor standards, and so forth. Trying to untangle the “natural” market signals from state-influenced market signals would be hopelessly complex, and this kind of approach would lead to preemption of dozens of state laws simply because they affect prices and markets. (This approach would lead to more profound questions about how to define the “natural” state of the market, too, given that markets are predicated on government-ensured property rights, currency, and infrastructures for exchange.)

So did NOAA realize that its legal approach was flawed? Is that why the agency reversed course and concluded that state fin bans are consistent with federal law? Unfortunately no. Instead of dropping its legal arguments, the agency simply has said in these particular situations (California, Maryland, and Washington), the factual requirements needed for its preemption theory are not present--because relatively few sharks are landed in these states from federal waters, and being unable able to sell the fins is unlikely to change fishing behavior very much. Because the factual requirements for preemption don't hold up, NOAA concludes in each case that the state law is not interfering with federal fisheries management. This is a limited fact-based concession, rather than a revised legal interpretation.

Despite the limited nature of NOAA’s concession, though, it’s still a good result. The agency should be applauded for reaching the right conclusion, even if it got there late and using narrow logic. And who knows? Maybe this is a hint that NOAA will be distancing itself from the flawed legal reasoning relied upon in last year’s proposed rule and legal brief.